Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 44 (10 February 1999)

Last Updated: 18 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 44

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223/95

20592/96

HEARING DATE{S): 9 February 1999

JUDGDMENT DATE: 10/02/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr I Barker Q.C.

Mr G O'L Reynolds S.C.

Mr R G McHugh

(Plaintiff)

Mr H Nicholas Q.C.

Mr J S Wheelhouse

Mr R Titterton

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

CATCHWORDS:

Notices to Produce

ACTS CITED:

Defamation Act 1974 (as amended)

DECISION:

See paragraph 40

JUDGMENT:

- 18 -

DLJT : 5

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 10 FEBRUARY 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

JUDGMENT (Notices to Produce)

1 Two Notices to Produce were served by the plaintiff's solicitors on the defendant's solicitors on 4 and 5 February respectively.

2 Their service arises in the following circumstances:

3 In each action the defendant has pleaded justification pursuant to ss 15 and 16 of the Defamation Act, 1974. In each action appended to the relevant pleading are particulars of the defences of justification in respect to the relevant imputations or contextual imputations (see SCR Pt 67 rr 14, 15, 18(1), (5) and (6)).

4 By letters dated 6 and 7 January 1999 the defendant's solicitors informed the plaintiff's solicitors in each action respectively of its intention that at the trial it would rely upon what are described as "further facts, matters and circumstances" in relation to the pleas of justification. Shortly stated, the proposed additional material involves three people, D13, D 14 and D15. Very shortly stated, the additional material particularises allegations involving these three people and conduct towards them by the plaintiff and particularly at a certain establishment at Kings Cross.

5 On Thursday 4 February 1999 "discussion" took place and submissions were made as to whether or not it was appropriate for the defendant to be permitted to pursue, at trial, its amended case on justification in respect of these three new allegations (as I shall described them). In the course of those proceedings on that day an affidavit sworn by Mr Potter, solicitor for the plaintiff, of 3 February 1999, was filed in Court, to which is annexed a body of material sourced in either the defendant's discovered documents or in material obtained under subpoenas issued by the plaintiff.

6 Later in the proceedings on that day an affidavit by the solicitor for the defendant, Mr Angus, sworn 4 February 1999, was filed in Court. The proceedings progressed to the point where Mr Barker Q.C. for the plaintiff announced his intention to cross-examine Mr Angus upon that affidavit.

7 Upon the resumption of proceedings on 9 February an affidavit sworn on 8 February by Mr Angus was filed in Court making amendments to his affidavit of 4 February; a further affidavit of Mr Potter was filed in Court attaching a page numbered 35 which had been omitted from his original affidavit sworn on 3 February.

8 The Court was also provided with a copy of a letter dated 1 February 1999 from the solicitors for the defendant to the solicitors for the plaintiff referring to a Notice to Produce dated 25 January returnable on 4 February. I have not seen that Notice to Produce. The letter however, sets out the defendant's proposed responses to what I gather to be the various paragraphs of that earlier Notice to Produce.

9 Upon a call being made by Mr Reynolds S.C. for the plaintiff upon the two Notices to Produce with which I am presently concerned, the defendant, as I understand it, moved to set those Notices aside as oppressive by reason of the "breadth" of material called for (an abuse of process) and on the basis that it was a disguised demand for discovery.

10 The response by Mr Reynolds to the position taken by the defendant involved, first, a consideration of what was submitted to be the relevant principles applicable to the determination of the question as to whether or not the defendant should be allowed to amend. At this point there was some discussion as to whether or not that which the defendant was seeking to do was to amend its defence or to amend the case (by adding the three new complainants) it proposes to make in support of the defence already pleaded (see Pt 20 and in particular, the learned editors commentary in paragraph 20.1.6. of Ritchie's "Supreme Court Procedure"). There is no need at this point to decide that issue.

11 It was argued for the plaintiff that in the end the relevant considerations boil down to four in number: (a) due diligence must have been shown by the defendant; (b) there must have been full disclosure by the defendant; (c) that the delay in seeking leave for amendment must be shown not to have been deliberate in order to overreach the plaintiff or obtain some tactical advantage; (d) the proposed amendment must be meritorious, that is, not "futile".

12 These propositions (which were not acceded to by Mr Nicholas Q.C. for the defendant) were founded in the statements of principle in the 9th ed of Gatley on Libel & Slander at pages 703-4 in that section where the learned authors deal (paragraph 27.33) with the grant of leave to amend particularly in relation to a plea of justification. The principal authorities upon which these summarised considerations are based are Cropper v Smith (1884) 26 Ch. d 700; Cadam v Beaverbrook Newspapers Limited (1959) 1 QB 413; Associated Leisure v Associated Newspapers (1970) 2 QB 450. I was also referred to the judgment of Miles CJ in Perkins v Nationwide News [1992] NTSC 4; (1992) 106 FLR 373.

13 In the light of the enunciation of these asserted principles, and particularly those concerned with due diligence (delay) and full disclosure, Mr Reynolds then embarked upon an analysis of the affidavit of Mr Angus relating to each of these areas and particularly to argue that either at common law or under the provisions of the Evidence Act, 1995 (ss 122 and 126), there had been a waiver of legal professional privilege warranting the full disclosure of the material embraced by the Notices to Produce.

14 For immediate purposes I will use the affidavit filed by Mr Angus in the first matter (20223/95). It is 19 paragraphs in length and paragraphs 1, 2, 9, 11, 12, 16 and 18 are not of immediate concern.

15 In paragraph 3 Mr Angus swears:

"Prior to 11 November 1998 the defendant had made various attempts to obtain the assistance of D13. Until 13 November 1998, D13 had refused to meet with the defendant's solicitors".

16 It is argued for the plaintiff that the very terms of this paragraph point to non-disclosure in relation to the identification of the "attempts", for example. Non-disclosure is apparent with respect to the "refusal". There must have been communications in regard to the matters deposed to in this paragraph. It is to be assumed that on 11 November D13 agreed to meet with the defendants solicitors. The plaintiff is entitled, it is argued, to all documents and things relating to what must necessarily have been the communications involved in the matters to which Mr Angus deposes in this paragraph.

17 It is argued that this paragraph identifies, at least, communications with potential witnesses and thus, in some way, constitutes a waiver of privilege that would otherwise apply in that regard.

18 In paragraph 4 Mr Angus deposes (as amended by his affidavit of 8 February), to a conversation between himself and Greg Quail. First there appears to be some issue as to the precise status of Mr Quail vis-a-vis the defendant. It is contended that he is not an employee, it is questioned whether he is an agent and it is asserted that he is a "contractor". During the course of argument a document was handed up which on its face appears to be an agreement dated 13 February 1996 between the defendant and Apogee Pty Limited, Mr Quail's company. The status of the document as "handed up" was unresolved. On the assumption however that Mr Quail enjoys the status attributed to him by the plaintiff, it is argued that the affidavit generally is deficient in relation communications with or by Mr Quail with the defendant, the defendant's solicitors and the proposed witnesses. Further, it is argued that the selected disclosure of part of the conversation amounts to a waiver of privilege that would otherwise attach to the communication between Mr Angus and Mr Quail.

19 Paragraph 5 of the affidavit refers to a meeting being arranged by a Melbourne solicitor with the defendant's firm and its cancellation by D13. This again, it is argued, points to the fact that there must have been communications in relation to these arrangements, their cancellation, and the exposure of those events in paragraph 5 amounts to a sufficient waiver of privilege that would attach to communications between the defendant and its potential witness.

20 Paragraph 6 refers to advice given by Mr Wheelhouse of counsel on 13 November 1998 to the effect that the defendant could not rely on a defence of justification based on evidence that D13 might be expected to give until D13 had provided a signed statement containing the evidence that he would give if so required. This paragraph deposes to what is described as "core" privileged material but is framed in terms as to constitute a waiver thereof, the nature of the advice of Mr Wheelhouse having been disclosed, and points to the existence of material, it is said, upon which such advice was given.

21 In paragraph 7 Mr Angus deposes to arrangements between Mr Thompson and D13 for a meeting to take place on 9 December, Mr Thompson informing Mr Angus that the meeting took place as arranged and Mr Thompson handing to Mr Angus a statement signed by D13. The defendant asserts privilege in relation to that signed statement. Similar arguments in relation to communications and the waiver of privilege are made in relation to the matters deposed to in this paragraph.

22 In paragraph 8 of his affidavit Mr Angus deposes that on 18 December he sent to Mr Wheelhouse a copy of the statement signed by D13. Pausing there Mr Reynolds points to the lapse of one month between the time the advice was received (13 November 1998) from Mr Wheelhouse and the forwarding to Mr Wheelhouse of the signed statement, to the need for which Mr Wheelhouse had referred in his advice. The nature of the advice sought on 14 December from Mr Wheelhouse is disclosed in paragraph 8, as is the advice that Mr Wheelhouse gave that D13 should be called as a witness. Mr Wheelhouse was to draft additional particulars "in accordance with the statement signed by D13".

23 The next relevant matter is referred to in paragraph 10 where Mr Angus deposes that on 5 January he "checked and settled" the particulars of justification drafted by Mr Wheelhouse based upon the statement by D13 on 9 December 1998. It is argued that Mr Angus has been less than full in his disclosure of the circumstances to explain the lapse of time between the forwarding of the statement to Mr Wheelhouse on 14 December and Mr Angus' settling of the particulars on 5 January. Indeed, it is argued that the defendant would be entitled to consider the particulars as settled and delivered in the light of the material contained in the statement signed by D13. Further, the defendant is entitled to an explanation as to why it was that it was necessary for Mr Angus to "check and settle" a draft prepared by Mr Wheelhouse.

24 With respect to paragraphs 13, 14, 15 and 17 (dealing with D15) the same objections are made and submissions advanced as I have referred to in respect of the preceding paragraphs.

25 Paragraph 19 of Mr Angus' affidavit states:

"The particulars in respect of the statements signed by D13 and D15 respectively were supplied to Phillips Fox at the earliest opportunity the defendant had to supply those particulars"

26 This paragraph, in particular, was seized upon by Mr Reynolds. The letter of particulars sets out the particulars of the case the defendant proposes to make, yet Mr Angus has deposed to providing particulars in respect of the "statements". The wording of paragraph 19 amounts to a waiver of privilege as to the content of the statements.

27 The affidavit sworn by Mr Angus in the second action (20592/96) follows virtually the same format as the affidavit with which I have been dealing. Similar submissions are to be taken to have been in relation to that affidavit.

28 Paragraph 19 of the affidavit filed by Mr Angus in the second action is in the same terms as the affidavit in the first action.

29 It is to be noted that both affidavits refer only to D13 and D15. The references to D14 are in the letters of particulars of the proposed amended case and upon my reading of them it appears that evidence in relation to D14 arguably could be taken to be sourced in D13; that is, there appears to be, at this stage, no reference to any material directly involving D14 in terms of statements. Certainly there is no reference in Mr Angus' affidavits to steps taken in relation to D14, discretely.

30 I add that the material annexed to the affidavit of Mr Potter and the contents of Mallesons letter of 1 February 1999 refer to the participation (a word I use as neutrally as possible) of a Mr Collin Hughes solicitor and similar submissions are made in relation to communications with that person in respect of the client (and potential witness) of that solicitor.

31 Thus, in summary, it is argued, that given the application of the principles in relation to amendment encapsulated in the four propositions referred to earlier in these reasons, an analysis of Mr Angus' affidavit discloses that there has not been full disclosure, that contrary to the assertion of the defendant that all its "cards have been laid on the table", the bulk of the "deck" has been concealed and there has been effectively waiver of privilege in all the areas the subject of matters deposed to by Mr Angus.

32 In respect to waiver of privilege I was specifically referred to the decision of the Court of Appeal in Akins v Abigroup (1998) 43 NSWLR 539 and a most useful decision of Sackville J in Towney v Minister for Land & Water Conversation for the State of New South Wales (1997) 76 FCR 401particularly at 413-4 and his Honour's discussion of AG (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475. I do not propose to rehearse the submissions in this regard. Suffice to say, it is Mr Reynolds contention that both under the Evidence Act and at common law (particularly on a Maurice fairness basis), there has been a waiver of privilege that would entitle the plaintiff to all the material sought to be encompassed by the Notices to Produce.

33 For the defendant it was contended by Mr Nicholas Q.C. that the four basic propositions do not necessarily reflect the finite law in regard to amendments in relation to a plea of justification. The overriding principles are those enunciated, it is submitted, by the High Court in the State of Queensland & Anor v J L Holdings Pty Limited [1997] HCA 1; (1996-7) 189 CLR 146 particularly at 154, 155, 164 and 169. This is what I will describe as the "interests of justice" consideration which, as I understood the submission by Mr Nicholas Q.C., must transcend any particular consideration of elements of the kind encapsulated in the plaintiff's four propositions. This area for argument, in my view, will in the end go to whether or not leave should be granted but I take it to be advanced at this stage in response to the enunciation of principle by Mr Reynolds to lay the ground work for his more specific submissions on Mr Angus' affidavit in support of the propriety of the Notices to Produce. In the course of argument I was referred by Mr Nicholas to two of my own judgments: Assaf & Anor v Skalkos & Anor (unreported, 5 February 1998) and Meekosha & Anor v Special Broadcasting Service Corporation & Anor (unreported, 18 September 1998), in each of which I gave consideration to the application of the J L Holdings principles. I was also referred to the unreported decision of the Court of Appeal, 1 October 1998, in TCN Channel Nine Pty Limited v Antoniadis where, in my view, the Court's consideration of the amendment component of the appeal is of little present relevance (the defendant there not relying on any new facts in support of the proposed defences); otherwise, of course, what the Court said in relation to amendment generally and in particular to authorities including J L Holdings will be relevant.

34 The application by the defendant in respect of the amendment is perhaps the most critical application that has hitherto been made in anticipation of the commencement of the hearing of these actions. Its outcome will be critical to the position of each side. Thus it is that I have taken a short time to consider the preliminary point as to the propriety of the Notices to Produce. I am not deciding, of course, the application in relation to the amendments themselves.

35 In the course of submissions what I will describe as forensic acrimony was exposed in the following way: Mr Reynolds asserted that he was not alleging mala fides against Mr Angus with respect to his affidavits. What he did assert was construed by Mr Nicholas Q.C. as statements that Mr Angus' affidavit was the product of dishonesty, that it was telling half truths by reason of it being carefully crafted, it failed to fully and frankly disclose matters which should have been disclosed and it was "cute' (Mr Reynolds' word), in the selection of the language employed and, shortly stated, was a "sworn deception" put before me (T119.25). This "exchange", I suppose, was inevitable but in the end does not assist in the resolution of the particular issue I have to decide. Mr Reynolds' submissions were most helpful (as were Mr Nicholas') as was his analysis of Mr Angus' affidavit. They do not however amount to a case in support of the Notices to Produce. On reading the two notices I easily come to the view that they are oppressive in their breadth and do constitute, in effect, a requirement that the defendant give discovery. I propose to set the notices aside.

36 In one respect however, I am persuaded by the submissions of Mr Reynolds that there has been a waiver of privilege and that is by reason of the terms of paragraph 19 of each affidavit. Here Mr Angus deposes to particulars of the statements having been provided; in other words, those particulars are of the contents of those statements. He did not depose to the particulars of the "case" being provided, which case in due course would be proved by evidence which is set out in the statements.

37 The appropriate course to adopt to resolve this critical matter that will affect the trial as a whole, and the appropriate course to adopt at this time is to make orders under the relevant Pt 23 of the Supreme Court Rules and in particular, Pt 23 r 7. That is, I propose to order particular discovery. Save for the two statements of D13 and D15 referred to in paragraph 19 of each of Mr Angus' affidavits, I do not at present find there to have been any waiver of privilege.

38 I am further persuaded of the need for an order for specific discovery by reason of statements made by counsel for the defendant in the course of submissions (which even now are not clear) to the effect that but for two or three documents which Mr Angus had in Court, all of the documents referred to in the Notices, other than those in respect of which privilege has been claimed, have previously been discovered to the other side. I appreciate that on one view that statement by counsel for the defendant is indicative of an understanding of what is called for by the Notice to Produce and thus is capable of operating in derogation of the fundamental submission, that the Notices constitute an abuse of process by reason of their breadth and requiring discovery. I do not in the end take a view conformable with that argument.

39 There seems, at the very least, to be uncertainty as to what has been discovered in relation to the proposed amendments. Given the nature of the application to amend and its criticality in this action, the interests of fairness and justice will be served by requiring the defendant to give specific discovery in relation to the subject matter of the proposed amendments. This will enable the plaintiff and his advisers more closely and, I trust in a more focussed way, to decide upon the necessity for and the scope of any cross-examination of Mr Angus and the better to argue, if occasion arises as a result of the required affidavits of discovery, any question of waiver of privilege in areas other than that in which I have made a finding favourable to the plaintiff already.

40 Accordingly, the formal orders are:

1. I set aside the Notices to Produce dated 4 and 5 February 1999.

2. In each action I order the defendant to make an affidavit in accordance with SCR Pt 23 r 7(a) and to serve same in accordance with r 7(b) with respect to:

(a) The attempts made by the defendant, its solicitors, servants, agents or other persons on its behalf, prior to 11 November 1998 to obtain the assistance of D13 and the refusal until 11 November 1998 of D13 to meet with the defendants solicitors as deposed to in paragraph 3 of the affidavit of Ian Robert Angus sworn 4 February 1999 (the affidavit).

(b) The telephone conversation between Mr Greg Quail and Mr Ian Angus on 11 November 1998 (see paragraph 4 of the affidavit).

(c) The arrangements for a meeting between Joshua Thompson made on 13 November 1998 for a meeting on 25 November and the cancellation of that meeting by D13 (see paragraph 5 of the affidavit).

(d) The advice given on or about 13 November 1998 by Mr J S Wheelhouse of counsel and the evidence that D13 might be expected to give (see paragraph 6 of the affidavit).

(e) The arrangements for the meeting between Mr Thompson and D13 that took place on 9 December 1998 and the information from Mr Thompson to Mr Angus that the meeting had taken place (see paragraph 7 of the affidavit).

(f) The sending of a copy of the statement to Mr Wheelhouse, the request for his advice and to draft particulars, Mr Wheelhouse advising that D13 should be called as a witness and that he would draft additional particulars (see paragraph 8 of the affidavit).

(g) The checking and settling by Mr Angus on 5 January 1999 of the particulars of justification drafted by Mr Wheelhouse (see paragraph 10 of the affidavit).

(h) The unsuccessful attempts to locate D15 by the defendant, its solicitors, servants or agents or person on its behalf prior to 10 November 1998 (see paragraph 13 of the affidavit).

(i) The provision of information by Mr Wolff on 11 December 1998 that he had met with D15 and the arrangements for the meeting with D15 (see paragraph 14 of the affidavit).

(j) The provision to Mr Wheelhouse on 14 December 1998 of the copy of D15's statement and the request for advice as to the content of that statement and the request to draft particulars (see paragraph 15 of the affidavit).

(k) The checking and settlement on 5 January 1999 by Mr Angus of the particulars drafted by Mr Wheelhouse.

(l) The document referred to in paragraph 5 of the letter dated 1 February 1999 from Messrs Mallesons Stephen Jaques to Phillips Fox.

(m) The records of interview and notes of interview with D15 referred to in paragraph 7 of the letter dated 1 February 1999 from Mallesons Stephen Jaques to Phillips Fox.

3. The solicitors for the defendant by 4pm on Wednesday 10 February 1999 are to make available for inspection and photocopying by the solicitors for the plaintiff the signed statements by D13 and D15 referred to in paragraph 19 of the affidavit of Mr Angus sworn 4 February 1999.

4. Liberty to apply with respect to the fixing of time for compliance with Order 2.

LAST UPDATED: 10/02/1999